The Bankruptcy Protector

Chapter 11 debtors operate under various levels of uncertainty. Often a company is dependent upon others to provide financing or close transactions necessary for the company’s survival. Such was the case of Eclipse Aviation, which filed for Chapter 11 bankruptcy in November 2008, with an (apparent) agreement to sell itself to its largest shareholder.

The recent decision of Justice B.E.

In a 2018 judgment discussed here, the Alberta Court of Queen’s Bench held that, by virtue of s.

Joint venture partners commonly enter into operating agreements which grant operators a security interest, referred to as an operator’s lien. Operator’s liens are, for the most part, consensual and contractual security interests subject to the provisions of the Personal Property Security Act, RSA 2000, c P-7 (the “PPSA”) and the priority regime set out therein.

Both the Bankruptcy and Insolvency Act (“BIA”)[1] and the Companies’ Creditors Arrangement Act[2] stay actions and remedies as against debtors.

R. v. Dunn, Beatty and Gollogly 2013 ONSC 137

Introduction

All businesses know that one key to profitability is risk management. Particularly in such industries as oil and natural gas, eligible financial contracts have emerged as an invaluable tool to hedge the risk associated with volatile foreign currency exchange, interest rates and commodity prices. Indeed, a large business has developed proffering over-the-counter derivatives (or ‘swaps’) and standardized exchange-traded derivatives (or ‘futures’) to do just that.

The highest profile duty to consult case this past year was the Federal Court of Appeal’s decision in Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, relating to the Trans Mountain Pipeline Expansion Project (TMX Project). This was a judicial review of the federal Cabinet’s decision to approve the TMX Project for the second time subject to numerous conditions. The TMX Project involves the twinning and expansion of an existing pipeline from Edmonton, Alberta to Burnaby, British Columbia.

The Alberta Court of Appeal recently upheld an unreported decision of the Court of Queen’s Bench that unpaid taxes on linear property (which were pipelines and associated facilities in the case at bar) formed only unsecured claims against the debtors.

This fall, the NDP and the Bloc Québécois (“Bloc”) have both introduced private member’s bills seeking to amend the Bankruptcy and Insolvency Act(“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”).